Mohammed Shakiq v Boral Australia Gypsum Limited

Industrial Relations Commission (NSW)|2003-06-17|Before: Walton J, Boland J, Mr P

CITATION : Mohammed Shakiq v Boral Australia Gypsum Limited [2003] NSWIRComm 182 APPELLANT Mohammed Shakiq PARTIES : RESPONDENT Boral Australia Gypsum Limited FILE NUMBER: IRC 5318 of 2002 CORAM: Walton J Vice-President; Boland J; Macdonald C Appeal - Application for leave to appeal and appeal - Unfair dismissal - Jurisdiction - Applicant summarily dismissed for offensive conduct - Long employment history with employer - Importance of applying the correct test in relation to unfair dismissal claims - Held that dismissal was not harsh, unreasonable or unjust - Leave to appeal refused - Appeal dismissed CATCHWORDS : Unfair dismissal - Appeal - Application for leave to appeal and appeal - Unfair dismissal - Jurisdiction - Applicant summarily dismissed for offensive conduct - Long employment history with employer - Importance of applying the correct test in relation to unfair dismissal claims - Held that dismissal was not harsh, unreasonable or unjust - Leave to appeal refused - Appeal dismissed LEGISLATION CITED : Industrial Relations Act 1996 s 84 s 188(1) s 188(2) s 188(3) Box Valley Pty Ltd v Price (2000) 97 IR 484 Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 CASES CITED : King v State Bank of New South Wales [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Outboard World Pty Ltd (Trading as Budget Waste Control) v Muir (1993) 51 IR 167 Robert Gordon King v State Bank of New South Wales [2002] NSWIRComm 353 HEARING DATES: 06/06/2003 DATE OF JUDGMENT: 06/17/2003

LEGAL REPRESENTATIVES: RESPONDENT Mr K G Bennett of counsel with Mr G Jervis Australian Business Lawyers

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: Walton J, Acting President Boland J Macdonald C Tuesday 17 June 2003

Matter No. IRC 5318 of 2002 MOHAMMED SHAKIQ AND BORAL AUSTRALIA GYPSUM LIMITED Application by Mohammed Shakiq for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 30 August 2002 in matter no IRC 1448 of 2001

REASONS FOR DECISION OF THE COMMISSION [2003] NSWIRComm 182 1 This is an application for leave to appeal and, if leave be granted, appeal from a decision of Commissioner Tabbaa given on 30 August 2002 in which the Commissioner dismissed an application by Mr Mohammed Shakiq for relief from alleged unfair dismissal by Boral Australia Gypsum Limited, the respondent in these proceedings.

2 Mr Shakiq had commenced employment with the respondent in November 1988 and remained in employment until his dismissal on 2 February 2001. At the time of his dismissal Mr Shakiq was employed as a front end loader operator and cleaner in the respondent's Plaster Mill Division.

3 The Commissioner found that Mr Shakiq had been summarily dismissed on the basis of a complaint made against him by three female employees of the respondent that: On the 31st of January he had entered reception and said to Carmel Cox "I see a lot of new pussy around here". It is then alleged that he made a sniffing face and said "And I can smell it from here".

4 The three female employees, including Ms Cox, were standing in the respondent's reception area at the time Mr Shakiq made the remarks and were allegedly offended and distressed by the remarks.

5 After an extensive review of the evidence and submissions, Commissioner Tabbaa found as follows: I therefore find that, on the balance of probabilities, the actions of which the applicant was accused did occur and find no evidence that would suggest that the applicant had grounds to believe that his remarks to Ms. Cox would be acceptable to her. I further find that the applicant was given full details of the allegations against him and accorded every opportunity to respond. After considering all the evidence, submissions, and precedents related to such behaviour, I find that the nature of the applicant's conduct was such as have been deserving of summary dismissal. The applicant's claim is therefore dismissed.

6 In these appeal proceedings we adopted the usual course of directing the parties to file and serve their written submissions both on the question of leave and on the merits. However, the parties were advised that we would hear them first on the question of leave at a time and date fixed for that purpose and in doing so we would also have regard to the submissions on merit.

7 On 6 June 2003, we determined to refuse leave to appeal and dismissed the appeal. We indicated that we would shortly give reasons for our decision. These are the reasons for that decision.

8 Section 188(1) of the Industrial Relations Act provides that an appeal from a member of the Commission may only be made with leave of the Full Bench. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted. Section 188(3) provides that the Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.

9 It is apparent from the application that the appellant challenges the decision of Commissioner Tabbaa on the basis of alleged errors of law and fact and jurisdictional error.

10 The leading authority on the grant of leave to appeal is the judgment of the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382: See Robert Gordon King v State Bank of New South Wales [2002] NSWIRComm 353 at [52]; Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at [13]. 11 In King v State Bank of New South Wales the Full Bench said at par [54]: As was made clear by the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 the fact that an appeal seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in the form of leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]: "In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave."

12 In relation to the jurisdictional issue raised by an appellant, this does not, of itself, justify leave as each case is to be judged according to the statutory criteria. In such situations, the Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. This consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principles (Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381). 13 In reviewing the material on appeal we express some reservations about: the manner in which the respondent sought to rely on the appellant's allegedly poor employment record which, it seems to us, was not made out on the evidence; and, the isolated and 'out of character' nature of the appellant's misconduct in making the remarks that he did in front of three female employees. In this regard, there was some evidence that the respondent was looking for an opportunity to dismiss the appellant and the incident in the reception area provided that opportunity. However, because of the appellant's otherwise reasonable employment record over 13 years the respondent was forced to hunt about for more incriminating material to - as the Commissioner put it - "bolster" its decision to summarily dismiss the appellant.

14 In the result, however, Commissioner Tabbaa was very conscious of not only all of the matters in respect of which we have expressed reservations but also the other issues in contention between the parties at first instance. The Commissioner took these into account in weighing up the evidence including finding that the appellant had committed the conduct alleged against him. In deciding whether or not the dismissal was harsh, unreasonable or unjust, the conclusions she reached were clearly open to her and we do not consider it would be appropriate (notwithstanding that we may have adopted a different approach at first instance) for us to intervene on appeal.

15 In relation to alleged jurisdictional errors, Mr P Adams, solicitor for the appellant, contended on the question of leave that there was a constructive failure on the part of the Commissioner to exercise her jurisdiction because she: 1. Failed to determine the question of whether the determination of the appellant's employment was harsh, unreasonable or unjust. 2. Failed to determine whether the appellant was entitled to a remedy under Part 6 Chapter 2 of the Act notwithstanding the Commissioner found the allegations by the respondent proven.

Utilised an incorrect test or misconstrued the applicable test under Pt 6 Ch 2 by saying "the nature of the Appellant's conduct was such as having been deserving of summary dismissal".

16 It is true that Commissioner Tabbaa did not make an express finding that the dismissal was harsh, unreasonable or unjust. In Outboard World Pty Ltd (Trading as Budget Waste Control) v Muir (1993) 51 IR 167 the Full Bench said: First we deal with the argument for the appellant that the Commissioner erred by applying the wrong test in connection with the dismissal: "unfair" rather than "harsh, unreasonable or unjust" dismissal. We agree with Mr. Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term "unfair") to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s.246 rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one 'or more of the heads provided by the section. We take this view because, even though there may be some' circularity in the full phrase "harsh, unreasonable or unjust", we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair".

17 It is important when dealing with an application under s 84 of the Act that a member of the Commission makes an express finding as to whether or not they consider a dismissal to be harsh, unreasonable or unjust so that it is clear that the proper test has been applied. In this case Commissioner Tabbaa's finding was that "the nature of the Appellant's conduct was such as having been deserving of summary dismissal". It is not necessarily implicit in such a finding that the dismissal was not harsh, unreasonable or unjust because a consideration of issues under Ch 2 Pt 6 of the Act involves more than the conduct of a claimant and not merely findings as to whether an employer had lawfully exercised any right to terminate an employee. Nevertheless, we consider that the Commissioner's consideration of the claim was properly focused and addressed all of the relevant considerations including a substantial discussion otherwise in her decision as to whether the statutory test was satisfied. In the circumstances, we do not consider the Commissioner's decision admits of any jurisdictional error.

18 We confirm our previous orders as follows: (1) leave to appeal is refused; (2) the appeal is dismissed.

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